Larry Catá Backer's comments on current issues in transnational law and policy. These essays focus on the constitution of regulatory communities (political, economic, and religious) as they manage their constituencies and the conflicts between them. The context is globalization. This is an academic field-free zone: expect to travel "without documents" through the sometimes strongly guarded boundaries of international relations, constitutional, international, comparative, and corporate law.

The government framed the proposed changes in technical and administrative terms. That is, the rthrust of the changes were meant to bring regulaitons up to date given changes in technology and to provide a greater efficiency in the management of this field with the objective of enhancing enforcement of state policy objectives that have remained unchanged.

The government on Thursday began to solicit public
opinion on proposed changes to a 12-year-old law on the management of
Internet service in China.
The Measures on the Administration of Internet Information Services,
enacted in 2000, have become outdated in many aspects due to the rapid
development of the Internet and the emergence of new technology and
applications, said a joint statement issued by the State Internet Information Office and the Ministry of Industry and Information Technology.
The draft amendment to the law aims to improve the administration and
orderly development of Internet information services, as well as to
maintain national security, and the legitimate rights and interests of
the public and Internet information service providers, according to the
statement.
The draft encourages service providers to launch self discipline
activities and the public to supervise Internet information services.
If the draft becomes law, an Internet supervision system will be
established mainly comprising Internet information content
administrative authorities, telecommunication authorities and police
authorities.
The draft also clarifies the licensing procedure for online forums
and microblog sites, and standardizes the entry criteria for websites
and the management responsibilities of service providers.
More rules will be laid down for the real-name registration of users if it passed. (China solicits public opinions on Internet administration, Xinhua, June 7, 2012)

Creemers nicely notes one of the principle effects of indirect regulation through market management at the center of the modifications:

By adding to the administrative burden of setting up and running
Internet enterprises, the regime might endeavour to keep the number of
players low. It is much easier controlling a small number of large
visible enterprises than having to deal with large numbers of smaller
companies. Hence, by making market access procedures more difficult, the
administration puts up the pressure on social media enterprises to keep
their side of the deal: permission to operate in return for toeing the
political line. (Roger Creemers, New Draft Internet Regulations: the Empire Strikes Back?, supra).

Malavika Jagannathan adds more background:

The law represents the latest in a series of actions taken by the
Chinese government and microblog services to regulate user behavior on
microblogs, which have increasingly become platforms for government
criticism in China’s tightly-controlled media environment. According to
the state’s Xinhua news agency,
the draft law is an attempt to “improve the administration and orderly
development of Internet information services, as well as to maintain
national security, and the legitimate rights and interests of the public
and Internet information service providers.”

This new set of government regulations comes after China’s largest
microblogging service Sina Weibo instituted a number of new rules on its
users, an effort likely stemming from the company’s desire to appease the government. Last month, we noted in this blog post
that Sina Weibo, which boasts more than 300 million users, released a
new user contract in which users had to agree not to post content deemed
“untrue,” threatening to the “honor of the nation,” promoting “evil
teachings, or anything that “destroys societal stability.” That
contract went into effect last week after a three-week trial phase. Our
colleagues at the Herdict blog
note the introduction of a “user credit” points system for Weibo users,
which will subtract points for bad behavior such as “spreading
falsehoods.”(Malavika Jagannathan, Proposed Changes in China’s Internet Law Target Microblogging Services, Open Net Initiative, June 7, 2012)

Yet this approach has universal application. The language of market management and efficiency has a long history in the West; there is a certain irony in its use in China in ways that are in some ways incompatible with Western normative sensibilities. The use of managerial techniques, controlled by the state, to shape and direct otherwise free markets, to meet some one or another state policy is not unknown in the US (Stop Online Piracy Act (SOPA, etc.) ) and EU (EU Commission Proposed Data Protection Rules). But in the West, policy debates centers on what is called data protection and piracy. See, e.g., Cecilia Harsch, Cyber Laws: Where to Place Your Focus, MidSize Insider, June 8, 2012; EU Commission, Press Release, Commission Proposes comprehensive reform of data protection rules, Jan. 25, 2012.

But, of course, the issue is not management but the foundational policy motivating management and the interests of China and other states in the consequences for their foreign and economic policies of policy choices to privilege in managing markets. Indeed, beyond disagreement over the substantive policies underlying regulatory approaches, the extraterritorial effect of those regulatory managerial efforts projection he effect of those rules out onto the territory and citizens of other states, poses the greatest potential source of conflicts between states, among regulated stakeholders and other communities that can move between jurisdictions. These difficulties and those approaches are not unique to the internet, though easiest to expose within that regulatory field. But it has also bedevilled regulators in other areas as well. That also has been at the heart of debates at the heart of recent efforts, for example, to manage financial markets in the wake of the financial crisis of 2008. See, e.g., Larry Catá Backer, The Financial Stability Board and Global Financial Governance After the September 2009 G20 Conclave, Law at the End of the Day, Sept. 26, 2009. We can expect more of this in the future as states move more comprehensively from simple commands to a more technically oriented approach to behavior management, with large shifts in the locus of power and autonomy.

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All essays are (c) Larry Catá Backer except where otherwise noted. All rights reserved. The essays may be cited and quoted with appropriate reference. Suggested reference as follows: Larry Catá Backer, [Essay Title], Law at the End of the Day, ([Essay Posting Date]) available at [http address].

The author holds a faculty appointment at Pennsylvania State University. Notice is hereby given that irrespective of that appointment, this blog serves as a purely personal enterprise created to serve as an independent site focusing on issues of general concern to the public. The views and opinions expressed here are those of its author. This site is neither affiliated with nor does it in any way state, reflect, or represent the views of Pennsylvania State University or any of its entities, units or affiliates.

Ravitch and Backer's Law and Religion: Cases, Materials, and Readings

3rd Edition 2015

Broekman and Backer, Signs in Law

Springer 2014

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Globalization Law and Policy Series from Ashgate Publishing

Globalization: Law and Policy will include an integrated bodyof scholarship that critically addresses key issues and theoretical debates in comparative and transnational law. Volumes in the series will focus on the consequential effects of globalization, including emerging frameworks and processes for the internationalization, legal harmonization, juridification and democratization of law among increasingly connected political, economic, religious, cultural, ethnic and other functionally differentiated governance communities. This series is intended as a resource for scholars, students, policy makers and civil society actors, and will include a balance of theoretical and policy studies in single-authored volumes and collections of original essays.

An interview with the Series EditorQueries and book proposals may be directed to:Larry Catá BackerW. Richard and Mary Eshelman Faculty Scholarand Professor of Law, Professor of International AffairsPennsylvania State University239 Lewis Katz BuildingUniversity Park, PA 16802email: lcb911@gmail.com

About Me

I hope you enjoy these essays. Each treats aspects of the relationship between law, broadly understood, and human organization. My essays are about government and governance, based on the following assumptions: Humans organize themselves in all sorts of ways. We bind ourselves to organization by all sorts of instruments. Law has been deployed to elaborate differences between economic organizations (principally corporations, partnerships and other entities), political organization (the state, supra-national, international, and non-governmental organizations), religious, ethnic and family organization. I am not convinced that these separations, now sometimes blindly embraced, are particularly useful. This skepticism serves as the foundation of the essays here. My thanks to Arianna Backer for research assistance.